Opinion
June 5, 1992
Appeal from the Court of Claims, Hanifin, J.
Present — Green, J.P., Pine, Boehm, Fallon and Davis, JJ.
Judgment unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Although the amendment to EDPL 701 applies retroactively to this case, and although the amount awarded was substantially in excess of the amount originally offered by the State, we find that the Court of Claims properly exercised its discretion in denying claimants' application for an additional allowance to reimburse them for appraisal fees and the cost of a geological report and trial transcript (see, First Bank Trust Co. v. State of New York, 184 A.D.2d 1034 [decided herewith]). The Court of Claims stated that much unnecessary time was also spent by claimants' attorney in developing their rejected proof of damages. Nevertheless, it found that the cross-examination of the State's expert by claimants' counsel was largely responsible for the amount awarded, and granted an allowance of $2,642 for attorney's fees. In the exercise of our discretion (see, Chopp v Welbourne Purdy Agency, 135 A.D.2d 958), we modify to increase that allowance to $5,000.